Fisher v. U.S.

• Citation: 31 P. 195,1 Okla. 252,1892 OK 13
• Parties: FISHER v. UNITED STATES. [1]
• Decision Date: 19 September 1892
• Court: Supreme Court of Oklahoma

31 P. 195

1 Okla. 252, 1892 OK 13

FISHER v. UNITED STATES. ^[1]

Supreme Court of Oklahoma

September 19, 1892

Error to district court, Oklahoma county; JOHN G. CLARK, Judge.

George W. Fisher was convicted of perjury, and brings error. Affirmed.

An indictment charged that in a United States land office before the register thereof, a land contest was pending, in which it became material to know the whereabouts of one W and with whom he was at noon on a certain day, and defendant was produced as a witness, was duly sworn, and testified that he met W. and others at that time at a certain place, and was with them, whereas defendant did not meet or see W. and the others at the time and place testified to; and that by such testimony defendant knowingly and feloniously committed perjury before the register, who had competent power, under the laws of the United States, to administer the oath to said defendant. Held, that the charge was sufficient, within Rev.St.U.S. § 5396, Fed.Rules Crim.Proc. rule 7, 18 U.S.C.A. providing that it shall be sufficient to set forth in an indictment for perjury the substance of the offense charged upon the defendant, and by what court, and before whom, the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is assigned.

Amos Green and Edgar N. Sweet, for plaintiff in error.

Horace Speed, U.S. Atty.

BURFORD J.

George W. Fisher was convicted in the court below of the crime of perjury, and sentenced to imprisonment at hard labor for a term of four years, and to pay a fine of one dollar and costs. The case is brought here by proceedings in error to reverse this judgment. There are a number of errors assigned but, as there is no bill of exceptions in the record, there is but little left for us to review. The numerous motions made by the defendant during the progress of the case, the objections made at the trial, the instructions offered and refused, and the motion for new trial, are not in the record by proper bill of exceptions, and present no questions for our consideration. The defendant demurred to the indictment at the proper time, for the reasons-- First, that the grand jury which found the indictment had no legal authority or jurisdiction to inquire into the offense charged, for the reason that said grand jury was not selected, formed, and impaneled as provided by law second, that the indictment does not state facts sufficient to constitute a public offense. This demurrer was overruled, and defendant excepted. The first cause assigned is not a proper subject for demurrer under the criminal procedure act of this territory. The demurrer searches the indictment itself, and points out defects apparent on its face. It is not a proper requisite of an indictment that it state or disclose the manner in which the grand jurors were selected or impaneled. The second cause of demurrer tests the sufficiency of the facts pleaded to constitute a public offense. The defendant was convicted upon the third count of the indictment, which is equivalent to an acquittal upon the others, and hence we need only consider the sufficiency of this count. After properly setting forth the caption, it continues as follows: "The grand jurors aforesaid, upon their oaths aforesaid, in the name and by the authority of the United States of America, do further find and present that at and within said Oklahoma county, in said territory, on the 9th day of November, in the year of our Lord one thousand eight hundred and ninety, in the United States land office at Oklahoma City, in said county, of which said land office John H. Burford was then and there the register, and John C. Delaney was then and there the receiver, a certain land contest and cause was pending, and then and there came on to be tried, wherein one Morgan Wright sought to have the homestead entry of one George W. Coffman for lots one, two, and three, four, five, and six of section six, in township eleven north, of range three west of the Indian meridian in said territory, canceled and forfeited to the United States; and thereupon it then and there became and was a material question whether the said Morgan Wright had entered upon or occupied contrary to law any portion of the lands opened to settlement under the acts of congress approved on the 1st and 2d days of March, respectively, in the year of our Lord one thousand eight hundred and eighty-nine, and the proclamation of the president of the United States dated the 23d day of March, in the year last aforesaid, and prior to twelve o'clock noon of the 22d day of April of the year last aforesaid; and it then and there became and was a material question where and with whom said Morgan Wright was at and about twelve o'clock noon of the day last aforesaid; and then and there George W. Fisher was produced as a witness in said land contest and cause, and as such witness in said land contest and cause was then and there duly sworn to testify the truth, the whole truth, and nothing but the truth, in said case, by...